Challenger v. Kijakazi

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is REVERSED AND REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration in accordance with this Memorandum and Order. A separate judgment shall be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 9/24/2024. (TMT)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
Julie A. Challenger,

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Plaintiff,
v.
MARTIN J. O’MALLEY,1
Commissioner of Social Security,

Case No. 4:23-CV-00571-NCC

Defendant.
MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) and 1383(c)(3) for judicial review of the
final decision of Defendant Martin J. O’Malley, Commissioner of Social Security (the
“Commissioner”) denying the application of Plaintiff Julie A. Challenger (“Plaintiff”) for
Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§
1381, et seq. (the “Act”). The parties’ consent to the jurisdiction of the undersigned magistrate
judge pursuant to 28 U.S.C. § 636(c) (Doc. 5).
I.

PROCEDURAL HISTORY

On May 28, 2021, Plaintiff protectively filed her application for SSI (Tr. 250). The Social
Security Administration denied Plaintiff's application on September 17, 2021 (Tr. 139-47).
Plaintiff filed a timely Request for Reconsideration on October 27, 2021 (Tr. 148-51). On April
05, 2022, the Commissioner issued a Reconsideration Determination affirming the previous
denial (Tr. 152-56). On April 14, 2022, Plaintiff filed a Request for Hearing before an

Martin J. O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure, Martin J. O’Malley should be substituted, therefore, for Kilolo Kijakazi as the
defendant in this suit. No further action need be taken to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. § 405(g).
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Administrative Law Judge (“ALJ”) (Tr. 157). On December 19, 2022, the ALJ issued an
unfavorable decision (Tr. 7-27). On March 2, 2023, the Appeals Council denied Plaintiff's
request for review (Tr. 1-6). Plaintiff has exhausted all administrative remedies, and the decision
of the ALJ stands as the final decision of the Commissioner.
II.

DECISION OF THE ALJ

The ALJ found that Plaintiff had not engaged in substantial gainful activity since May 28,
2021 (Tr. 12). The ALJ then determined that Plaintiff had the following severe impairments:
degenerative joint disease, obesity, major depressive disorder, anxiety, personality disorder,
attention deficit hyperactivity disorder (“ADHD”), and post-traumatic stress disorder (“PTSD”).
Id. The ALJ noted that these impairments significantly limited Plaintiff’s ability to perform basic
work functions. Id. After considering the medical evidence, the ALJ concluded that Plaintiff does
not have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
(Tr. 12 - 14). After considering the record, the ALJ determined that Plaintiff had the residual
functional capacity (“RFC”) to perform medium work as defined in 20 CFR 416.967(c), with the
following limitations: Plaintiff “can perform simple, routine task; have occasional contact with
supervisors, coworkers, and the public. She can make occasional simple work-related decisions
and adjust to routine gradual changes to the work setting. There should be no paced production
quotas, so no assembly line type work.” (Tr. 14-20). Considering Plaintiff’s age, education, work
experience and RFC, the ALJ determined that jobs exist in the national economy that Plaintiff
can perform, including automobile detailer, laundry worker, and industrial cleaner (Tr. 20). The
ALJ concluded that Plaintiff was not disabled, as defined by the Act, from May 28, 2021,
through the date of the decision (Tr. 21).

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The Court accepts the facts as set forth in the parties’ respective statements of fact and
responses. The Court will cite to specific portions of the transcript as needed to address the
parties’ arguments.
III.

LEGAL STANDARD

Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920. Plaintiff is disabled if she is
unable “to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§
423(d)(1)(A); 1382c(a)(3)(A). Accord Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). “If a
[Plaintiff] fails to meet the criteria at any step in the evaluation of disability, the process ends,
and the [Plaintiff] is determined to be not disabled.” Goff v. Barnhart, 421 F.3d 785, 790 (8th
Cir. 2005) (quoting Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this
sequential analysis, Plaintiff cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b). Second, Plaintiff must have a severe impairment.
20 C.F.R. §§ 416.920(c). The Social Security Act defines “severe impairment” as “any
impairment or combination of impairments which significantly limits [Plaintiff's] physical or
mental ability to do basic work activities....” Id. “ ‘The sequential evaluation process may be
terminated at step two only when the claimant's impairment or combination of impairments
would have no more than a minimal impact on her ability to work.’ ” Page v. Astrue, 484 F.3d
1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001),
citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).

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Third, the ALJ must decide whether the Plaintiff has an impairment that meets or equals
one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d). If Plaintiff has one of,
or the medical equivalent of these impairments, then Plaintiff is per se disabled without
consideration of her age, education, or work history. Id.
Prior to Step Four, the Commissioner assesses the Plaintiff's RFC, 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4), which is “the most a [Plaintiff] can still do despite [her]
limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1); see also Moore v. Astrue, 572 F.3d
520, 523 (8th Cir. 2009). At Step Four, the impairment must prevent Plaintiff from doing past
relevant work. 20 C.F.R. §§ 416.920(f). The burden rests with Plaintiff at this fourth step to
establish her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of
this analysis, the [Plaintiff] has the burden of showing that she is disabled.”).
Fifth, the severe impairment must prevent Plaintiff from doing any other work.
20 C.F.R. §§ 416.920(g). At this fifth step of the sequential analysis, the Commissioner has the
burden of production to show evidence of other jobs in the national economy that can be
performed by a person with Plaintiff's RFC. Steed, 524 F.3d at 874 n.3. If Plaintiff meets these
standards, the ALJ will find her to be disabled. “The ultimate burden of persuasion to prove
disability, however, remains with the [Plaintiff].” Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th
Cir. 2000); see also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004) (citing 68 Fed.
Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)
(“The burden of persuasion to prove disability and to demonstrate RFC remains on the
[Plaintiff], even when the burden of production shifts to the Commissioner at step five.”). Even if
the Court finds that there is a preponderance of the evidence against the ALJ's decision, the
decision must be affirmed if it is supported by substantial evidence.

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Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a
preponderance but is enough that a reasonable mind would find it adequate to support the
Commissioner's conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
IV.

DISCUSSION

Plaintiff first argues that the ALJ’s mental RFC assessment is not supported by substantial
evidence, because though the ALJ found Dr. Thomas Spencer’s medical opinion persuasive, the
ALJ committed reversible error by not incorporating, or failing to state a reason for not
incorporating, all the functional limitations listed in Dr. Spencer’s assessment. (Doc. 13, p.2-6).
Plaintiff contends that had the ALJ fully accounted for Dr. Spencer’s limitations in the RFC, it is
unclear whether the ALJ would have found Plaintiff can perform any competitive work. Id. at 5.
The Court agrees, and as such, will not address Plaintiff’s other argument.
For claims like Plaintiff’s, filed after March 27, 2017, an ALJ evaluates medical opinions
pursuant to 20 C.F.R. § 404.1520c. These new rules provide that the Social Security
Administration “will not defer or give any specific evidentiary weight, including controlling
weight, to any medical opinion(s) or prior administrative medical finding(s), including those
from [a Plaintiff’s] medical sources.” 20 C.F.R. § 404.1520c(a). Rather, an ALJ is to evaluate the
persuasiveness of any opinion or prior administrative medical finding by considering the: (1)
supportability of the opinion with relevant objective medical evidence and supporting
explanations; (2) consistency with the evidence from other medical sources and nonmedical
sources in the claim; (3) relationship with the plaintiff, including length, purpose, and extent of
treatment relationship, whether it is an examining source, and frequency of examination; (4)
specialization; and (5) other relevant factors. 20 C.F.R. § 404.1520c(c).

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In evaluating the persuasiveness of a medical opinion, the factors of supportability and
consistency are the most important for an ALJ to consider, and the ALJ must “explain how [he]
considered the supportability and consistency factors ... in [the] determination or decision.” 20
C.F.R. § 404.1520c(b)(2). An ALJ’s failure to address either the consistency or supportability
factor in assessing the persuasiveness of a medical opinion requires reversal. Bonnett v. Kijakazi,
859 F.App'x. 19, 20 (8th Cir. 2021) (unpublished) (per curium) (citing Lucus v. Saul, 960 F.3d
1066, 1069-70 (8th Cir. 2020) (remanding where ALJ discredited physician’s opinion without
discussing factors contemplated in regulation, as failure to comply with opinion-evaluation
regulation was legal error)). ALJs need not explain in their decision how they considered the
other factors. 20 C.F.R. § 404.1520c(b)(2).
The ALJ summarized the opinion of Dr. Spencer, who conducted a consultive exam of
Plaintiff, as follows:
Turning to the opinion evidence, in April 2022, Dr. Spencer, who performed a consultative
exam on the claimant, opined that the claimant had moderate impairment in her ability to
learn, recall, and use information and to consistently stay on task. Further, that the claimant
demonstrated moderate impairment in her ability to relate to and work with others on a
consistent basis. Ex. C10F/3. Although Dr. Spencer failed to assert any concrete functional
limitations, the undersigned finds his opinion that the claimant was moderately impaired
persuasive. Dr. Spencer’s opinion is supported by his examination of the claimant and
explanation. Moreover Dr. Spencer’s opinion is generally consistent with the medical
evidence of record, in particular, the claimant’s generally unremarkable mental status
exams. Exs. C2F/19; C5F/2, 10, 26; C7F/2, 9, 12; C14F/7; C16F/4. In addition, the
undersigned notes that the claimant was taking care of her 3-year old daughter, including
feeding, clothing, and bathing her. She could prepare frozen meals, shop in stores and by
phone, pay bills, with prompts, and count change. Ex. C10E/3-4. The undersigned finds
that limitations are warranted, but the claimant’s mental health impairments do not
completely preclude her ability to work.
(Tr. 18). Though the ALJ found Dr. Spencer’s opinion persuasive, the ALJ determined Plaintiff
had the RFC to perform medium work with the following limitations: “[t]he claimant can
perform simple, routine tasks; and have occasional contact with supervisors, coworkers, and the

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public. She can make occasional simple work-related decisions and adjust to routine gradual
changes to the work setting. There should be no paced production quotas, so no assembly line
type work.” These limitations did not include Dr. Spencer’s opinion that Plaintiff has a moderate
impairment to consistently stay on task (Tr. 590). The Commissioner argues that the “ALJ is not
required to adopt the opinion verbatim just because he finds it persuasive; nor is the ALJ required
to explain in detail every limitation.” (Doc. 16, p.8-9).
The ALJ’s findings need not mirror a particular report, form, or opinion. Wolynski v.
Kijakazi, 4:21-CV-1158 SRW, 2022 WL 1521619, at *8 (E.D. Mo. May 13, 2022) (citing Owens
v. Saul, 2020 WL 2319880, at *4 (W.D. Mo. May 11, 2020)). See Martise v. Astrue, 641 F.3d
909, 927 (8th Cir. 2011). Despite finding an opinion persuasive, the ALJ need not adopt every
suggested limitation in the opinion. Id. (citing Moore v. Commissioner, 2021 WL 2834395, at *2
(N.D. Miss. July 7, 2021) (“the fact that the ALJ found the opinion persuasive does not obligate
the ALJ to incorporate every limitation suggested by the report, nor do the regulations require the
ALJ to expressly address the persuasiveness of every opinion within every report.”) (citing 20
C.F.R. § 404.1520c).
However, the absence of any explanation detailing why the ALJ disregarded Dr.
Spencer’s limitation that Plaintiff has a moderate impairment to consistently stay on task, while
including all the other limitations in Dr. Spencer’s opinion, requires remand. See Lutz v. Kijakazi,
4:20-CV-1140-SPM, 2022 WL 782300, at *5 (E.D. Mo. Mar. 15, 2022) (finding that “the
absence of any explanation of why the ALJ disregarded Dr. Stalker’s limitation to one-to-two
step tasks, when she accepted all of the other limitations in Dr. Stalker’s opinion, requires
remand.”).

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As followed in Wolynski and Lutz, the reasoning in Berry v. Kijakazi, 2021 WL 4459699,
(E.D. Mo. Sept. 29, 2021), as articulated in Wolynski, is particularly instructive for the current
matter:
Because the ALJ did not provide a reason for rejecting [the State agent's] opinion on the
two-step command limitation – while including [the agent's] other opined limitations in the
RFC – the Court would be required to determine in the first instance whether there was
substantial evidence to support the ALJ's decision to reject that limitation. It is not within
the Court's purview to speculate why the ALJ may have rejected certain evidence. While
the ALJ may have considered and for valid reasons rejected the two-step command
limitation of [the agent's] opinion, the Court is unable to determine whether any such
rejection is based on substantial evidence, given the ALJ's complete failure to address it.
When an ALJ's decision is unclear as to the medical basis for his assessment of the degree
to which the claimant's impairments affect [his] RFC, the matter must be remanded for
further proceedings.
Wolynski, 2022 WL 1521619, at *9 (citing Berry 2021 WL 4459699, at *9). Here, the ALJ found
Dr. Spencer’s opinion persuasive, determining that the opinion was generally consistent with the
medical evidence of record, particularly Plaintiff’s “generally unremarkable mental status
exams.” (Tr. 18). However, the ALJ omitted from the RFC Plaintiff’s limitation to consistently
stay on task. Furthermore, the ALJ did not articulate why he believed Plaintiff was not entitled to
the limitation, nor does the record provide a basis for the Court to determine whether or not
Plaintiff could still perform “medium work,” or any kind of work, after accounting for the stay
on task limitation. By not addressing the reason for rejecting the stay on task limitation, the ALJ
renders this Court “unable to determine whether any such rejection is based on substantial
evidence” Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995)). It is not in this Court’s purview to
speculate why the ALJ did not include the limitation, only that the ALJ did not provide a basis
for omitting the limitation. Berry 2021 WL 4459699, at *9 (citing Jones 65 F.3d at 104). As such,
remand is necessary.
Further, the ALJ’s error does not appear harmless. “An error is harmless when the
claimant fails to ‘provide some indication that the ALJ would have decided differently if the
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error had not occurred.’ ” Lucus, 960 F.3d at 1069 (quoting Byes v. Astrue, 687 F.3d 913, 917
(8th Cir. 2012)). As previously mentioned, Dr. Spencer stated that Plaintiff has “moderate
impairment in her ability to learn, recall, and use information and to consistently stay on task.”
(Tr 590). The ALJ adopted the other limitations expressed by Dr. Spencer but did not include a
basis for excluding the off-task limitation. According to the Programs Operations Manual System
(POMS), “[t]he ability to maintain concentration and attention for extended periods” is a mental
ability needed for any job. See POMS DI 25020.010(B)(2). In fact, the vocational expert testified
that off task behavior exceeding ten percent during a workday would make it difficult to maintain
competitive employment. Considering this, had the ALJ included the on-task limitation, the
outcome might have been different. As such, remand is appropriate.
V.

CONCLUSION

For all the foregoing reasons, the Court finds that the ALJ’s decision is not supported by
substantial evidence.
Accordingly,
IT IS HEREBY ORDERED that this action is REVERSED AND REMANDED to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration in
accordance with this Memorandum and Order.
A separate judgment shall be entered incorporating this Memorandum and Order.
Dated this 24th day of September 2024.

/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE

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